Some leeway for pro se appellants

Pro se litigants sometimes read this blog, so if you're a pro se litigant who wants to take an appeal to the Court of Appeals, this one's for you.

The case is Elliott v. City of Hartford, decided on May 19, As the Court of Appeals notes, this is a tragic and horrible case. The witness to a murder in Hartford was herself murdered, probably to silence her. The victim's family brought a lawsuit that blamed the police for her murder. The case was dismissed on summary judgment. Along the way, the district court issued several orders, but the notice of appeal mentioned only the most recent order, dated August 22, 2014. The brief on appeal challenges prior orders as well.

While the rules governing notices of appeal have particular requirements as to what goes into the notice -- i.e., what rulings you are appealing -- notices of appeal filed by pro se litigants are viewed liberally, "and not every technical defect in a notice of appeal constitutes a jurisdictional defect." The Court of Appeals has to view the notice of appeal in light of the appellant's intent, with fairness to the appellee. So here is the rule, taken from a case decided in 1997: "in the absence of prejudice to an appellee, we read a pro se appellant’s appeal from an order closing the case as constituting an appeal from all prior orders." The holding is more technical, but it gives you a sense of how the Court of Appeals sees all of this:

The first September 30, 2013 order addressed the motion for summary judgment by the City defendants, and granted the motion in part and denied it in part, without prejudice. The second September 30, 2013 order granted the motion for summary judgment by the State defendants. The August 22, 2014 order granted the City defendants’ renewed motion for summary judgment. Because claims remained against the City defendants, Elliott was unable to appeal either of the September 30, 2013 orders until after the issuance of the August 22, 2014 order, which granted defendants summary judgment on the remaining claims and ordered the Clerk to “close this case.”

It is further evident from Elliott’s brief that she intended to appeal rulings in the September 30, 2013 orders, in addition to the August 22, 2014 order, as she challenges numerous rulings made by the district court in its September 30 orders.

 No prejudice to defendants from the technically defective notice of appeal, as they briefed all the issues that plaintiff wanted to raise and cannot therefore say they were sandbagged by the notice of appeal.

Are you foul-mouthed?

I have watched enough Judge Judy to know that truth is a defense to any defamation action. So that if you call me a crook, and I sue you for defamation, and I really am a crook, then there is no defamation case. What if you call someone "foul-mouthed"? Is that defamation?

The case is In Re Application of Kate O'Keefe, a summary order decided on May 26. The Court of Appeals does not decide whether "foul-mouthed" is a defamatory slur. The Court instead decides whether the defendant can take the deposition of the plaintiff's chauffeur in Hong Kong. The Court says the district court did not abuse its discretion in refusing to quash the subpoena.

The plaintiff is Sheldon Adelson, the billionaire casino magnate who bankrolls Republican presidential candidates. As the Second Circuit (Cabranes, Straub and Lohier) puts it, "Adelson has sued O’Keeffe in Hong Kong for defamation. His claim involves an article that O’Keeffe co-authored for the Wall Street Journal, which described Adelson as 'foul-mouthed.' O’Keeffe’s defense in that lawsuit depends, in part, on her contention “that the term foul-mouthed is true in substance and fact.' To facilitate that defense, O’Keeffe seeks to subpoena [Kwame] Luangisa for evidence of Adelson’s use of 'foul' language."

I don't know the legal doctrine in Hong Kong, but in New York, unless you call someone a criminal or some other falsehood that hurts your business reputation, defamation cases require proof of special damages, i.e., emotional distress or lost income. I don't think calling someone "foul-mouthed" will lose you any money. It might cause you some distress, but unless your career depends on a squeaky-clean image, who cares?  

As far as the deposition in Hong Kong, my guess is that Adelson's driver will testify to some colorful language from the man who made his fortune in Las Vegas. I know about three people who never use foul language. Everyone is foul-mouthed. Vulgarity is the official language of the United States of America.

Low damages, high fees

The Court of Appeals reminds us that labor law cases that yield low damages can still produce large attorneys' fees awards for the plaintiff's lawyer. Otherwise, no one brings these cases, and the labor law is ignored.

The case is Luo v. L&S Acupuncture, a summary order decided on May 16. I argued the appeal. Plaintiff was denied certain compensation under the Fair Labor Standards Act. After a bench trial, the district court awarded her about $4,000. Her lawyer then moved for attorneys' fees. The trial court awarded plaintiff's trial counsel over $60,000 in fees. On appeal, the employer makes a couple of interesting arguments.

First, the employer says the attorneys' fees award is too high because it served on plaintiff a Rule 68 offer that plaintiff did not exceed at trial, which would reduce the attorneys' fees substantially. The problem was the employer forgot to tell the trial court about the Rule 68 offer when it opposed the attorneys' fees application. Which means the Rule 68 offer essentially did not happen. After the fee decision was issued, defendant remembered the Rule 68 offer and asked the court to reconsider the attorneys' fees motion. The trial court said this motion was filed too late, outside the 28 day deadline. On appeal, the employer said the plaintiff had a duty to apprise the trial court about the Rule 68 offer and her failure to do so was a basis to reduce the award. Interesting argument for which there is no case law. But there was no notice of appeal from the reconsideration denial, which means the Court of Appeals (Pooler, Livingston and Carney) has no jurisdiction over that argument. The Second Circuit will have to decide in some other case the issue of who has to alert the district court about the Rule 68 offer.

But defendant did file a notice of appeal from the initial attorneys' fees ruling, so the Court of Appeals has authority to resolve that issue. That issue was whether the fees were disproportionate to the plaintiff's damages. The Second Circuit says it does not matter. Many of these cases are not big-money cases. But if lawyers do not have incentive to file them, then these violations will go unremedied. Citing Millea v. Metro-North Railroad, 658 F.3d 154 (2d Cir. 2011) (an FMLA case with similarly disproportionate fees-to-damages), the Court says:

“Especially for claims where the financial recovery is likely to be small, calculating attorneys’ fees as a proportion of damages runs directly contrary to the purpose of fee-shifting statutes: assuring that civil rights claims of modest cash value can attract competent counsel.” “The whole purpose of fee-shifting statutes is to generate attorneys’ fees that are disproportionate to the plaintiff’s recovery.” As both the FLSA and the New York Labor Law are fee-shifting statutes, see 29 U.S.C. § 216(b); N.Y. Lab. Law § 198(1-a), we see no reason to depart from the general rule in this case.

The ugly realities of life exposed in this disability discrimination claim

This plaintiff worked for a private hospital and repeatedly received FMLA leave over her physical ailment, cancer. After she did not return to work as scheduled, the hospital fired her. At trial, the jury awarded plaintiff a lot of money: $541,000.00 on her New York State disability discrimination claim, which the trial judge reduced to $440,000.00. The Court of Appeals takes away the verdict for good, and defendants win.

The case is Vangas v. Montefire Medical Center, decided on May 19. My guess is that this is not an FMLA case because plaintiff had exhausted her 120-day allotment under the statute. I do not know why this case did not proceed under the Americans with Disabilities Act. You don't see too many Second Circuit cases resolved solely under the State Human Rights Law, but here we are. In any case, after plaintiff's medical leave was extended on a number of occasions, she was finally supposed to return to work on August 30, 2010. The day before, plaintiff left a voice mail stating she did not feel well and was following up with doctors. She did not return to work on August 30, and was fired that day. On August 31, she conceded in a conversation with management that she was not "medically cleared" to return to work.

This is what we call a sympathetic plaintiff. She was fired at a time when she suffered from cancer. The jury certainly thought plaintiff was sympathetic, as it found in her favor. But the courts do not care about sympathetic plaintiffs. They care about applying the law. In this case, the Court of Appeals (Jacobs, Hall and Restani [sitting by designation]) says plaintiff's case fails for an elementary reason: no reasonable accommodation was available to her because she was unable to perform her job. Here is the reasoning:

At the time of her final request for leave and termination, Vangas was incapable of performing the essential functions of her job. She was not medically cleared to return to work and admitted that she could not do so. Therefore, at that time, the only possible accommodation was an extension of leave, as she was incapable of working, in any capacity, whether at home or in the office. Vangas did not request an extension of leave for a specific time period—she simply informed MMC that she was not feeling well, would not be returning to work on August 30, 2010, and could not give MMC a date for her return to work. The district court correctly interpreted these actions as requesting an indefinite leave extension, which as a matter of law is not a reasonable accommodation.

This case exposes an ugly truth of employment law, and really of life in general. Plaintiff began working for the hospital in 1989, so she put in more than 20 years. The law doesn't care. We call it "employment at will," which means you can be fired for any reason or no reason at all unless your termination violates a specific law. As the Court of Appeals sees it, plaintiff was unable to work. Yes, she has a disability, but there is no reasonable accommodation that can help her, at least none recognized by the law. So the case is over.

No harm, no foul in sex-offender due process case

Here's a civil rights case with the least sympathetic plaintiffs as possible, which is why they were awarded one dollar in damages, which the Court of Appeals affirms.

The case is Warren v. Pataki, decided on May 17. In 2005, after the State Assembly declined to pass a law that would allow this to happen, Governor Pataki got a regulation from his Department of Mental Health that allowed the government to commit certain sex offenders to further confinement even after their criminal sentences expired. Pataki came up with this idea after a violent sex offender killed someone after release from prison. The Governor did not want the state bureaucracy to waste any time in coming up with this new system. He also wanted correctional officials to "push the envelope of the State's existing involuntary commitment law." Under the Sexual Violent Predator (SVP) initiative, experts would evaluate each inmate fitting that description upon their release from incarceration. If the inmates were found to a continued threat to the public, they were sent to a psychiatric center. (The SVP initiative is no longer in operation).

Politicians and even the general public love initiatives like this, but the courts take a close look at them because the government is restricting someone's freedom after the sentence is completed. The case went to trial that lasted three weeks. Among other claims, the jury found that plaintiffs' due process rights were violated, i.e., the procedures created by the hasty SVP were not quite fair. But the plaintiffs only got a dollar because the jury said that even had the plaintiffs received due process, they would have been civilly confined post-jail sentence anyway.

Here is where things get interesting, at least for me. How do we know the plaintiffs would have been confined even had they gotten due process? Because the federal court trial was in essence a "presentation of proof at a constitutionally adequate pre-commitment hearing, allowing the jury to evaluate what the strength of the State's evidence at such a hearing would  have been." In other words, the trial replicated the due process hearing. The state psychiatrists testified what information they were given with respect to plaintiffs and what conclusions they drew based on that information, and the cross-examination of these experts by plaintiff's counsel at trial was similar to the cross-examination at a due process hearing. The jury saw what would have happened had plaintiffs gotten the due process hearing they deserved and decided that, through that hearing, plaintiffs would have ended up in the psychiatric facility anyway. Hence, one dollar in damages for the civil rights violation, but no more than that because no harm to plaintiffs.

Forced supermarket pricing laws are constitutional

When I worked at a supermarket many years ago, we would take the pricing sticker rolls and throw them into the night sky at Shea Stadium and watch them unravel against the stadium lights. A couple of times the stickers landed on the field, in foul territory, but the Mets in the 1980s were bad boys of baseball, and no one raised an eyebrow over what we were doing. Except for the customers at the supermarket who for the next week did not know what anything cost. This was before the days of computer scanners, and if an item had no price sticker, then all hell broke loose at the register. That was not my problem; I was packing out groceries in the aisles. This is probably why some municipalities require supermarkets to put price stickers on consumer goods.

The case is Poughkeepsie Supermarkets v. County of Dutchess, a summary order decided on May 13. The County passed a law in 1991 that requires that price stickers be placed on individual items. Plaintiff says this law constitutes commercial speech in violation of the First Amendment. Now, certain First Amendment protections apply in the commercial context, but the government has more leeway in regulating commercial speech than political or personal speech. It's quite difficult to regulate political speech, but the government has more leeway in justifying restrictions on commercial speech. The Court of Appeals (Carney, Livingston and Pooler) says "an informational disclosure law . . . [is] subject to rational review, that is, a determination of whether the required disclosure is reasonably related to the state’s interest." This "rational basis review" is the kiss of death for plaintiffs who challenge the constitutionality of governmental practices; the government can advance almost any reason to justify the restriction.

The law reads like this:

This Legislature hereby finds and determines that the Consumers in Dutchess County are entitled to clear information, setting forth the prices of consumer commodities which they purchase from retail supermarkets. A clear, easily enforceable item-pricing statute will promote the Dutchess County consumers' right to all reasonable information in order that these consumers are able to make informed choices about their purchases.

The Legislature also finds and declares that there is technology utilizing a laser scanning device offering numerous efficiencies and economies to the operation of the retail food industry. The Legislature further finds that price marking constitutes an indispensable [sic] ingredient to a consumer's right to all reasonable information in order to make an informed purchase choice.

The purpose of this Legislation is to require item pricing to protect the interest of the Consumer public, and to promote useful technology by permitting continued testing and development of the UNIVERSAL PRODUCT CODE CHECK-OUT SYSTEM without the removal of ITEM PRICE.

Under this deferential standard of review, the Second Circuit agrees that plaintiff cannot win the case. The Court reasons as follows:

Although Poughkeepsie Supermarket alleges facts seeking to show that some of the reasons for implementing the law are no longer valid, it failed to allege sufficient facts to demonstrate that the law was not reasonably related to the state’s valid interest in providing complete price information to consumers. The district court therefore correctly granted Dutchess County’s motion to dismiss for failure to state a claim.

No retaliation claim over fake FMLA leave

The Court of Appeals continues to hear cases that raise new questions under the Family and Medical Leave Act, a law enacted in 1993 that allows certain employees to take time off for personal and family medical reasons without fear of retaliation. This case is dismissed from the outset.

The case is Alexander v. Board of Education, a summary order decided on May 6. Under FMLA, employers cannot retaliate if you take FMLA leave. In this case, plaintiff claims she was retaliated against, but the Court of Appeals (Hall, Calabresi and Walker) finds on the face of the Complaint or in related documents (this appeal arises from a Rule 12 motion) that she had taken FMLA leave for fraudulent reasons. Although the Second Circuit has not addressed this issue before, other Circuits have, including the Sixth and Seventh, which have said that it's not illegal retaliation of management shows you the door over your dishonest FMLA leave.

The Court goes on to say the Complaint does not plausibly allege retaliation because "the length of time between Alexander's exercise of her FMLA leave and her discharge" is too attenuated. In addition, while plaintiff says management made hostile comments about her FMLA leave, it was not until they discovered it was fraudulent that they actually terminated her employment. So here's a nuance affecting the Rule 12/Iqbal inquiry: "Alexander's attenuated allegations were contradicted both by more specific allegations in the complaint and documents incorporated by reference."

The Court of Appeals follows the lead of the other circuits in rejecting plaintiff's claim, holding that not all FMLA leaves insulate you from termination. A dishonest FMLA leave is a terminable offense. To that end, this case is not far afield from other areas of employment law. Good faith activities are protected under Title VII and other labor laws. Bad faith activities are not.

Are hospitals profiting from charging their patients for medical records?

For those of you who think that hospitals are overcharging for copies of medical records, this case is for you. The Court of Appeals finds that plaintiffs have a claim against medical providers and a copy service who allegedly broke the law in charging too much for medical records that they needed in litigation.

The case is Carter v. Healthport Technologies, decided on May 10. Under state law, hospitals cannot profit from the photocopies. But the complaint alleges that "the fees charged by HealthPort and paid by plaintiffs substantially exceeded the cost to produce the requested medical records and included 'built in kickbacks from HealthPort to the respective Hospitals." HealthPort is the firm that coordinates with the hospitals to make these copies. When plaintiffs requested the records, they were charged 75 cents per page along with a 2 dollar fee for electronic delivery. What I love about this case is that plaintiffs have cited what appears to be smoking gun evidence that the defendants are in fact profiting from these photocopies, suggesting that the hospitals are not only in the business of providing medical services. They are also in the photocopying business. The Second Circuit says:

To support this allegation, plaintiffs attached to the Complaint printouts of two advertisements on HealthPort's website offering "hospitals and large clinics" a "shared release of information (ROI)" or "ROI Partner" service, for responding to requests for medical records.

One advertisement stated to offerees, "[w]ith HealthPort ROI Partner, you will gain significant cash flow from the ROI process . . . ."

The other advertisement proffered testimonials from users of HealthPort's ROI services:

Just ask--our clients will tell you that our release of information services . . . will . . . boost revenue. Thus, HealthPort quoted a Florida hospital's Administrative Director of Health Information Management, who wrote, inter alia, "We decided to go with" HealthPort's "ROI Partner" service; "[n]ow we're a revenue generating department."

The district court dismissed the case on standing grounds, that is, the plaintiffs themselves did not request the medical records. Instead, their attorneys requested the records. Since the attorneys are not the plaintiffs, the plaintiffs lack standing to bring the case. The Court of Appeals (Kearse, Walker and  Cabranes) sees it differently. Under established case law, lawyers are the agents for their clients. If the lawyers requested copies of their clients' medical records, then they acted on their clients' behalf. So the plaintiffs really are the legitimate plaintiffs, and this case can proceed, and defendants are going to have to explain away the above evidence that suggests the hospitals are turning a profit from these copies.

Pro se inmate wins constitutional argument on appeal

This pro se inmate wins his case against the State of New York, convincing the Second Circuit to reinstate his religious freedom case.

The case is Williams v. John Doe, a summary order decided on May 6. Plaintiff is in the slammer. He says the jail's food practices violate his religious freedom under the First Amendment. When a case is filed, the judge may dismiss it out of hand if it does not plausibly assert any claims. So the bar is low, but it's also high, because plausibility may be in the eye of the beholder. That's what the Court of Appeals is for.

These cases require proof that a government entity's practices substantially burden your religious beliefs. Although the public may not like this, inmates have religious rights under the First Amendment. In setting up the holding, the Second Circuit (Hall, Calabresi and Walker) says "We have reasoned that when determining whether a prisoner’s religious beliefs have been substantially burdened, the relevant question is whether the infringed-upon religious activity is considered central or important to the prisoner’s practice of his religion." Here's the analysis:

Here, Williams’s complaint alleged that the premature sunset meals forced him to either forego his meal or break his fast; he characterized fasting for Ramadan as important to his practice of Islam and stated that eating before sunset was a “grave spiritual sin” that canceled the “validity” of fasting. Consequently, Williams successfully alleged a plausible free exercise claim.

In rejecting the claim, the district court relied on non-binding case law that says plaintiff suffered a trivial burden because only a few of his meals were delivered prematurely. But that case law runs afoul of Second Circuit precedent, which cautions against "the danger that courts will make conclusory judgments about the unimportance of the religious practice" to the plaintiff.

Hearsay breach entitles correction officers to new trial

Trial judges have substantial discretion in ruling on evidentiary issues at trial. It is hard to gain a new trial even if the judge mishandles an evidentiary ruling. This is partly because of the standard of review on appeal: abuse of discretion. Also, the appellate court will apply harmless error analysis, i..e., the evidentiary error would not have made any difference. This evidentiary appeal succeeds anyway.

The case is Abascal v. Fleckenstein, decided on April 29. Plaintiff was an inmate who sued correction officers over nutritionally inadequate food. He actually won at trial. The jury awarded plaintiff a dollar in nominal damages and $150,000 in punitive damages, to be split 50-50 among the two defendants. But the verdict is gone and a new trial is ordered because of hearsay evidence that hurt the defendants' case.

The case arose at Attica Correctional Facility. Plaintiff claims the CO's prevented him from leaving his cell during 14 mealtimes in retaliation for a grievance he filed over his mistreatment. At trial, the judge allowed the plaintiff to introduce a report from the Correctional Association of New York, a private organization that monitors prison conditions. That report was published a few weeks after the last incident of abuse alleged by plaintiff. Based on anonymous inmate survey answers, the report -- which does not identify its authors -- said that CO's at Attica were abusive and created a widespread climate of fear among inmates.

You can see how this report might sway the jury. The report says Attica is a hellhole, and plaintiff's claim alleges that Attica is a hellhole, so the report corroborates his claim. Except that the report is hearsay. It is an out-of-court statement that was introduced to prove that the Jail is a hellhole. You cannot cross examine a report. While there are exceptions to the hearsay rule, none apply here, including the public records exception (the report is not a public record but a private document) and the business records exception. The latter exception does not apply because the report was not prepared contemporaneous with the events in the case and does not have any trustworthiness since we don't know who prepared it and there is no way to verify that the incidents in the report took place when plaintiff's case arose. We also don't know if the report was prepared by someone with knowledge of the events described in the report. The report is also not the kind of regularly-prepared document that we normally associate with the business records exception to the hearsay rule.

The Court of Appeals (Hall, Pooler and Carney) finally say the erroneous admission of the report was not harmless error. The jury was probably influenced by the report, and it corroborated plaintiff's claim that the CO's had abused him through retaliation. And plaintiff's lawyer heavily relied on the report during summation. Since this case "was not particularly strong," the report made a difference at trial and the CO's get another shot before the jury.

2d Circuit says that some post trial motions may be filed out-of-time

This issue may put you to sleep, but if you are a federal litigator, you need to read this. The rules that we thought were etched in stone have been changed, and it has consequences for trial practice.

The case is Legg v. County of Ulster, decided on April 26. I argued this appeal, so let's try to be neutral here. This case got some attention because the Court of Appeals clarified what it takes to win a pregnancy discrimination case under Title VII. Read about it at this link. The Court also took up the County's appeal from a sexual harassment verdict won by a second plaintiff, Watson, who was awarded $400,000 for sexual harassment. That claim is the subject of this blog post.

After the jury returned the verdict, the County wanted to file post trial motions to vacate the verdict. This is standard procedure. Under the rules, you have 28 days to file that motion. The County wanted more time for the motion, and the Court agreed. When the motion was filed more than 28 days later, the Court sua sponte denied the motion as untimely, citing cases holding that the 28 day rule is jurisdictional and cannot be extended for any reason, ever, even if the non-moving party agrees to the extension. When the County filed a motion for reconsideration of that ruling, the Court again rejected the late filing. The County appealed from that ruling that denied the untimely post trial motion.

It is true that in the past, the Second Circuit held firm to the jurisdictional prohibition against filing post trial motions more than 28 days after entry of judgment. But the Second Circuit (Parker, Carney and Lynch) holds that this rule is not so iron-clad, and it is no longer a jurisdictional rule, ever since the Supreme Court in 2005 said that not all mandatory deadlines are jurisdictional. Since only Congress can enact rules affecting a court's jurisdiction to hear cases, and the 28 day rule is not a congressional statute but a "claims processing" rule handed down by the Supreme Court, that rule -- while still strict -- may be extended if the nonmoving party waives its right to strict enforcement of that rule.

If the 28 day rule was violated in this case but plaintiff waived its strict enforcement, then the district court had authority to resolve the County's post-trial motions. If there was no waiver, then the district court had to reject the motion out of hand without even reading the papers. The case is remanded to the district court decide whether plaintiff waived strict enforcement of the 28 day rule. As the Court of Appeals notes, "Although the plaintiffs never objected in the district court, it is not clear whether they had an effective opportunity do do so given the district court's quick denial of the motion and of reconsideration." Under the circumstances, the district court must decide if plaintiff waived objection to the court's improper grant of an extension of time or whether an equitable exception to prohibition of such extensions applied in this case.

Second Circuit reinstates pregnancy discrimination case

The Court of Appeals has set forth the ground rules governing when an employer violates Title VII's prohibition against pregnancy discrimination, ruling that a correction officer who was denied light duty because of her pregnancy may proceed to trial.

The case is Legg v. Ulster County, decided on April 26. I argued the appeal. When Legg got pregnant, she requested light duty because it was a high-risk pregnancy. The Jail only allowed light duty for officers who suffered work-related injuries. That meant that Legg could not get light duty. When she then worked directly with inmates she came upon two of them fighting and was bumped by them, causing her to leave work. At trial, the district court dismissed Legg's claim under Rule 50, ruling that the Jail's light duty policy was facially-neutral and did not discriminate against pregnant women. Benefiting from an intervening Supreme Court ruling decided in 2015, Young v. United Parcel Service, the Court of Appeals (Parker, Carney and Lynch) reinstates the case and remands for a new trial.

Young sets forth a burden-shifting model for resolving pregnancy discrimination cases, sort of a modified McDonnell-Douglas test that requires the plaintiff to prove a prima facie case and allows her to show the employer's reason for not granting her light duty was a false reason. In that case, the Court said an employer violates the Pregnancy Discrimination Act (which is part of Title VII) when it excludes pregnant employees while covering numerous other persons who were similar in their inability to work such that it is more likely than not that the disparity is the result of intentional discrimination. In defending itself, the employer cannot simply say that similarly accommodation women will cost too much money or is too inconvenient. In proving that the employer's stated reason is false, the plaintiff can win by showing that the employer's policies impose a significant burden on pregnant women, and that the employer's reason for the disparity is not sufficiently strong to justify the burden.

The Court of Appeals says Legg has enough evidence to win the case. While the employer says it maintained the policy to comply with state law that allows disabled employees with work-related injuries to receive salary and benefits, the jury can find otherwise because the County's witnesses did not actually articulate this at trial. In addition, the County's witnesses gave different reasons for the policy. The Sheriff said he wanted everyone to build up sick time and he did not believe in providing light duty to employees who were injured off the job. The Sheriff also said it would be more costly to give light duty to pregnant employees. Someone else testified that Legg was denied light duty for safety reasons. Moreover, the Court said, the jury can find that the light duty policy significantly burdened pregnant women because it categorically denied them light duty. The Court also rejects the County's other arguments, finding the jury can deem them pretextual. All of this is for the jury, which will hear the case on remand in the Northern District of New York.

2d Circuit places a limit on Title VII retaliation claims

Over the years, the case law interpreting Title VII's anti-retaliation clause has been favorable to plaintiffs who suffer retaliation for opposing discriminatory actions and policies in the workplace. But all winnings streaks have to end sometime, and in the Second Circuit it ends with this case.

The case is Cooper v. New York State Department of Labor, decided on April 26. Cooper is a sympathetic plaintiff. She was the director of Equal Opportunity Development for the Department of Labor, responsible for ensuring that the department complied with federal employment standards. After she learned that the Governor had developed a plan to alter how internal equal employment opportunity complaints would be handled by state agencies, Cooper spoke out over her concerns that these new rules would "subject the EEO complaint response process to political pressure" and increase the likelihood that workplace discrimination would go unaddressed. She was fired shortly thereafter.

Title VII's "opposition clause" honors the principle that the cover-up is worse than the crime. If you speak out against employment discrimination at work and suffer retaliation for that, the employer has violated Title VII, even if you did not actually complain about discrimination, so long as you did so in good faith. If you were wrong about the discrimination but did not complain about it solely to make trouble, you are protected from retaliation. That way, employees can speak out without fear of retaliation. Over the years, the courts have issued some pro-plaintiff rulings in this area. Not this time.

Cooper's retaliation was legal, the Second Circuit (Kearse, Chin and Cabranes) says, because she did not oppose an unlawful employment practice. "The conduct she opposed—the amendment of internal procedures in a manner that, she believed, would permit political considerations to influence the evaluation of discrimination claims—is not a 'practice made an unlawful employment practice' by Title VII. Nor could Cooper reasonably have believed otherwise. In defining with great care and precision those behaviors that qualify as 'unlawful employment practices,' the statute lays on employers no obligation to maintain any particular procedures for handling internal complaints. Indeed, the relevant provisions do not touch on the subject at all."

Cooper argued that she did speak out under Title VII because the new internal EEO procedures would have allowed discrimination to go unaddressed if political considerations influenced the outcome of discrimination claims. The Court of Appeals does not see it that way. "That Cooper sought to ensure that hypothetical victims of discrimination received a fair shake does not mean that she 'possessed a good faith, reasonable belief' that accepting [the new] proposal would have qualified as an 'unlawful employment practice' under the statute. Simply put, her argument stretches our precedents and the text of Title VII well past their breaking points."

It's the thought that counts

The Supreme Court has issued the rare case that expands First Amendment rights for public employees, ruling that a police officer who did not actually engage in free speech was protected from retaliation when his employer mistakenly thought that he did engage in free speech.

The case is Heffernan v. City of Paterson, decided on April 25. Heffernan was a police officer who did his ailing mother a favor by retrieving some political signs from her favorite political candidate and placing it in her front lawn. But, as the Supreme Court says, "Heffernan was not involved in the campaign but had picked up the sign simply to help his mother." Heffernan's supervisors did not know that Heffernan did not care about the political campaign. They thought he was an active supporter of the candidate, Spagnola. Word got out that Heffernan was seen retrieving the sign, and the police department retaliated against Heffernan because the commanding officers did not like Spagnolia.

Does Heffernan have a case? Your instinct would say that he does not because Hefferman did not actually engage in free speech. Which means that no one punished Hefferman for his speech. Since the First Amendment says the government cannot punish you for free speech, he cannot have a case, right? Wrong. A 6-2 majority that includes Chief Justice Roberts and Justice Kennedy says Heffernan can sue for money damages.

The Court draws from Waters v. Churchill, a Supreme Court ruling from 1994 that says the government can punish a public employee if it mistakenly but in good faith thinks the employee did not engage in free speech. That is, if the employer thought the plaintiff had simply engaged in office gossip but had in fact engaged in a political discussion which is protected under the First Amendment. The employer's motive mattered, not what the employee actually said. Twist that logic around and Heffernan has a case. What's good for the goose is good for the gander. Justice Bryeyer actually says that in this opinion. If the motive is bad, then we have a constitutional violation. I am not sure the Court always decides cases this way, but it does so here.

Heffernan also wins because the Supreme Court thinks about the implications of allowing the Police Department to get away with the retaliation. Heffernan's retaliation "tells the others [in the department] that they engage in protected activity at their own peril." The government essentially "acted upon a constitutionally harmful policy whether Heffernan did or did not in fact engage in political activity." Plaintiff was harmed by that policy. The Court does not tell us exactly how that "policy" exists in this case. Section 1983 junkies will think about how Monell plays into all of this. Under Monell, the government effects a policy -- even if unofficial -- if a top policymaker does something that violates the Constitution. The Police Chief is the one who fired Heffernan, so maybe that counts. But maybe not. Maybe the City Council is the policymaker in a case like this. The Court does not delve into these issues.